Some Complicated Thoughts on Leaks and Leak Investigations

On our new Foreign Policyfeed, we puzzled through what to think about Attorney General Jeff Sessions's press conference last week announcing a new Department of Justice effort against leaking. The article begins:

When U.S. Attorney General Jeff Sessions and Director of National Intelligence Dan Coats held a press conference last week to condemn leaks and announce prioritization of leak investigations, they sparked predictable outrage from both the press and opponents of the Trump administration.

The outrage is overblown. The Justice Department should be taking a hard look at leaks right now; that is a proper role and aim for the department, at least with respect to those leaks that are illegal and damaging to important government interests. Yet the press conference was disturbing nonetheless—less for the reasons so many media figures reached for the smelling salts than because of the not-so-subtle sheen of politics coloring the entire episode.

This issue is not about press freedom. The hostile response from the media reflects the press’s long-standing blind spot about leaks. Leaks are good for the press. And the press never questions, as a result, if they are good for society more generally. Conversely, leak investigations threaten sources and, depending on how they are conducted, even threaten journalists directly. They are bad for the press. And what inconveniences the press is, in the mind of the press anyway, a threat to an open society itself. Ergo, stepped-up leak investigations are bad and dangerous. This attitude is not new to the Trump era.

But the anxiety over the Sessions-Coats announcement went well beyond the typical media conflation of self-interest with the public interest. There is widespread enthusiasm among those who detest the incumbent president—not just in the press but also in the public, more generally—for anything that embarrasses Donald Trump or fuels the investigative energy that is mounting so much pressure on him. Leaks are helping drive the president’s meltdown in public approval; they are helping drive the investigations of Trump; and they form the backbone of the daily drip, drip, drip of revelation and negative coverage. Nothing that hurts Trump this much can really be bad, right?

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books and is co-chair of the Hoover Institution's Working Group on National Security, Technology, and Law.

Susan Hennessey is Managing Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.